The court clarified the scope and ambit of the questions posed before it, the existence of tenancy rights, and the maintainability of the suit. It held that the suit was maintainable and decreed it as prayed for.

1. The plaintiffs are the appellants here. The suit was filed to set aside a summary order passed in I. A. No. 2588 of 1967 in O. S. No. 70 of 1947 on the file of the Sub Court, Kozhikode, and also to declare the plaintiff's tenancy rights on the suit properties and for an injunction restraining the defendants from entering on the properties. The suit was decreed by the trail court declaring the plaintiff's tenancy rights and restraining the defendants from entering on the properties. In appeal by defendants 2, 4, 5 and 6 the appellate court confirmed the finding of tenancy, but dismissed the suit as not maintainable. The appellate court found that the order Ext. A 10 in I. A. No. 2588 of 1967 was an order passed under 0.40 Pule I Sub R.2 and therefore the remedy of the aggrieved party is only by way of an appeal and a fresh suit to set aside the order is not maintainable. It is from this decision that the Second Appeal has been filed.

2. The matter came up before one of us and by order dated 4-4-1975 the case was referred to a Division Bench. The reference order reads:

'The principal question involved in the appeal is whether the appellants' suit is incompetent or barred because they approached the Court with an interlocutory petition when the receiver in a suit to which they are not parties dispossessed them and invited an adverse order from which they did not appeal. I think that the question is important enough to be considered by a Bench. I am therefore referring the appeal for decision by a Division Bench.'

3. It might be noted that the question is now covered by an authority of a single bench decision as far as this court is concerned. The decision is Venkappa Bhatta v. Inthra Crasta (1973 KLT. 1037). The appellants question the correctness of the decision and request that the decision may be reconsidered. According to the counsel for the appellants, this decision does not lay down the correct law. The scope of the enquiry under 0.40 R.1 Sub-Rule 2 has not been correctly understood or appreciated, so goes the contention. The counsel would contend that no question of title could be properly adjudicated in proceedings under 0.40 Rule I Sub R.2. The enquiry is purely of a summary nature. The remedies available to the 3rd party are not mutually exclusive. It is also contended that the applicability of S.43 of the Specific Relief Act has not been correctly appreciated. There is also a prayer that in case this court finds that the suit is not maintainable to set aside Ext. A10 order, the Second Appeal may be treated as an appeal against Ext. A10 order excluding the time of the pendency of the suit in the trial court as well as in the Appellate Court.

4. To appreciate the contentions of the parties and for understanding the scope and ambit of the questions that are posed before us we think it would be necessary to deal with the facts of the case in some more detail and also to find, out how the courts below have dealt with them. There was a suit for partition as O. S. No. 70 of 1947 on the file of the Sub Court Kozhikode, in respect of the Kallangadi Edam. Defendants 2 to 6 in the present suit were defendants 152 to 156 in the said suit. The present plaint items were items 180 and 181 in that suit. A preliminary decree for partition had been passed in that suit on 9-11-1951.

Ext. B2 in this case is a copy of the judgment therein. At that stage, the reservations claimed by various parties in the said partition suit were relegated to the final decree stage. Consequently, in the final decree proceedings, the special rights or reservations claimed by the parties were gone into and the court passed an order evidenced in this case by Ext. B3. The two items of properties mentioned earlier were treated as properties in the direct possession of the tarwad and the commissioner appointed in the final decree proceedings reckoned those items as in the direct possession of the tarwad and valued the same accordingly for the purpose o